Case summaries

An application seeking leave for judicial review to quash the decision of the Refugee Appeals Tribunal on the basis of the Tribunal failing to take into account relevant information and a misapplication of Regulation 5(2) of S.I. 518 of 2006. 

After having committed several offences qualified as being of a ‘particular gravity’, Mr.O’s refugee status was revoked on April 21st 2006.

Upon appeal to the Council of Alien Law Litigation (‘CALL’), the question of the validity of article 55/3/1 of December 15th 1980 law (the ‘1980 Law’) arose. Although it is established that this provision is transposing article 14(4) of the Directive 2011/95/EU, its compatibility with the Geneva Convention must be verified.

The Council refuses then to pronounce itself on the question, arguing the competency of such matter is vested in the Court of Justice of the European Union.

Granting someone a refugee status for fear of persecution based on belonging to a social group due to his sexual orientation, cannot be linked to the fact that his sexual orientation has, or not, been made public. Indeed, a social group is instituted by how society perceive those in the group.

An individual applying for asylum does not have, in order to avoid persecutions in his country, to hide his sexual orientation.

In order to prove the risk of persecution, there is no requirement that belonging to a social group based on sexual orientation must be prohibited by any criminal law in the country of origin of the applicant. In fact, this risk can be based on abusive common law provisions, or behaviours, whether they are supported, facilitated or merely tolerated by the country’s authorities.

Where the ECtHR has, under Article 39 of the ECHR, granted interim measures prohibiting the Government from deporting the Applicant, this does not impact the ability of national courts to rule on the Applicant’s claim to asylum. The interim measures are binding on national authorities only.

The applicant, who had deserted the Syrian army, was seen in isolation covered by the Danish Aliens Act Art. 7 (1) [refugee status]. However, the Board found serious reasons to assume that the applicant had committed a crime against humanity and war crimes during his military service and consequently he was excluded from protection. Nevertheless, the Danish Aliens Act Art. 31, (2) is an obstacle to his expulsion as he would risk persecution covered by the Danish Aliens Act Art. 7 (1) in the case of returning to Syria.

A new Constitution accompanied by a new Constitutional Court illustrates the existence of a protection system as per the 1951 Geneva Convention in the relevant country.

Regarding family reunification, individuals can be considered as belonging to the same family if there is a clear economic dependency, not merely because they have biological ties. In order to establish this dependency, the judge may use both national and international sources. 

This case concerned a judicial review challenge of a Refugee Appeals Tribunal decision where the Court held that there must be a thorough analysis as to the forward looking fear of a person being returned to Pakistan on account of their religion.

The applicant, an ethnic Arab and a Sunni Muslim from Baghdad, who had worked in a firm with foreign connections in the Green Zone, had received threats from a Shia militia and his brother was abducted during a search for him at his home.

The Board found that the applicant, if returned to Iraq, was in real risk of suffering serious harm.

The Board did not find reason for granting refugee status under the Danish Aliens Act Art. 7 (1). The Board therefore granted subsidiary protection under the Danish Aliens Act Art. 7 (2).

In its decision, the tribunal defined the concept of ‘written’ according to the Dublin III Regulation. It also found that the a couple who were engaged did not constitute a family (according to the Regulation) unless they got engaged in their country of origin. Finally, the tribunal found that the sovereignty clause only afforded power to the State which was exercising it under the supervision of the administrative judge.